Citation Nr: 1140831
Decision Date: 11/03/11 Archive Date: 11/16/11
DOCKET NO. 08-14 490 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUE
Entitlement to service connection for an acquired psychiatric disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. Neilson, Counsel
REMAND
The Veteran had active military service from August 1969 to August 1971.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.
The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). In addition, certain chronic diseases, including psychoses, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).
The Veteran's service personnel records show that in August 1971, he was diagnosed as having an aggressive personality. It was recommended that he be discharged from military service for reasons of unsuitability. The Veteran's post-service medical records show that he was diagnosed as having schizophrenia. The exact date of diagnosis is unclear from the records before the Board, but a September 2001 private psychiatric evaluation noted that the Veteran had been on psychiatric medication since entering prison in 1980.
In July 2007, the Veteran was afforded a VA examination in connection with his claim of service connection for an acquired psychiatric disorder. The Veteran reported that he had been diagnosed in service as having an aggressive personality disorder, which he believed was an early manifestation of his psychosis. He reported that in 1980, he was incarcerated and diagnosed as having schizophrenia. He indicated experiencing some auditory hallucinations at that time.
The examiner administered the Minnesota Multiphasic Personality Inventory-II (MMPI-II), the results of which indicated some psychosis, as well as antisocial behavior. The profile described a person in a hyperarousal state, possibly hypomanic, with persecutory ideation. Results of the Millon Clinical Multiaxial Inventory-3 (MCMI-3) showed a willingness to disclose, possibly to excess. The Veteran was noted to fall in the normal range for social desirability and self esteem.
Based upon a review of the claims folder, an interview with the Veteran, and the results of clinical testing, the VA examiner diagnosed the Veteran as having undifferentiated schizophrenia. The examiner noted that the Veteran had been diagnosed with an aggressive personality in service. She stated that it was possible that he was having odd perceptions in service, noting that he had some extreme behavior in terms of growing a beard and acting out against the rules. The examiner felt that it was possible that the aggressive personality could be related to the Veteran's schizophrenia, but stated that it would be merely speculation to say so because there was no strong evidence to link the two. The examiner then went on to state that the Veteran continued to suffer from a mental condition related to military service.
Reviewing the July 2007 examination report, the agency of original jurisdiction (AOJ) noted that the examiner's conclusions appeared inconsistent and returned the examination report for clarification. In an August 2007 addendum, the examiner stated: "To clarify, the last statement should have read 'the veteran continues to suffer a mental condition, but it is inconclusive whether related to military service as I cannot resolve the issue without resort to mere speculation.'"
The United States Court of Appeals for Veterans Claims (Court) has held that once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 C.F.R. § 3.159(c)(4) (2010). A medical opinion arising from a medical examination is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). The opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions." Id. at 124.
Here, the VA examiner concluded that she could not resolve the issue at hand without resort to speculation. The Board observes in this regard that an examination report is not per se inadequate merely because an examiner concludes that he or she is unable to offer a nonspeculative opinion. Rather, the Court has held that, if an examiner concludes that a nonspeculative opinion cannot be offered, he or she must explain the basis for such a conclusion or the basis must otherwise be apparent from the evidence. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010).
Thus, to be adequate, more than a conclusion needs to be expressed by the examiner that the etiology of a particular condition is not known or is unknowable. See Stefl, 21 Vet. App. at 124. Rather, a sufficient rationale and supporting explanation need to be provided that addresses such matters as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and whether the question is so outside the norm of practice that it is really impossible for the examiner to use his or her medical expertise and training to arrive at an opinion. Jones, supra (in order to rely on a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or be apparent upon a review of the record.)
Here, it is unclear from the record why the VA examiner could not provide a medical opinion without resorting to speculation. Without a clear understanding from the examiner as to whether further information would be needed or whether the limits of medical knowledge have been exhausted, the conclusion in the report of the July 2007 examination with regard to the Veteran's schizophrenia is inadequate and a new VA examination is in order.
Under 38 U.S.C.A § 5103A, VA must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C.A § 5103A(a)(1) (West 2002); see 38 C.F.R. § 3.159(c) (2011) (obligating VA to obtain relevant records from Federal department or agency). This duty to assist includes making "reasonable efforts to obtain relevant records (including private records)," as long as the claimant "adequately identifies" those records and authorizes the Secretary to obtain them. 38 U.S.C.A § 5103A(b)(1); Loving v. Nicholson, 19 Vet. App. 96, 101-02 (2005).
The September 2001 private psychiatric evaluation notes that the Veteran was seen by a psychiatrist shortly after his incarceration in 1980. The claims folder contains a report from the Illinois Department of Corrections showing that the Veteran was incarcerated at the Dixon Correction Center from July 1980 to September 2004. The claims folder does not, however, contain any records related to the Veteran's psychiatric treatment while incarcerated; nor does it appear that any effort has been made to obtain those records. The Board finds that records related to psychiatric treatment after service are relevant to the Veteran's claim of service connection for an acquired psychiatric disorder. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010)
("Relevant records for the purpose of [38 U.S.C.A] § 5103A are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim."). Accordingly, the Board finds that on remand, the AOJ must seek to obtain any records from the incarcerating facility pertaining to treatment of the Veteran, especially with respect to any psychiatric treatment. 38 U.S.C.A § 5103A(b)(1); Golz, supra.
Accordingly, the case is REMANDED to the AOJ for the following action:
1. The AOJ should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for any psychiatric condition since service. The AOJ should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims folder.
2. The AOJ should contact the Illinois Department of Corrections and/or the Dixon Correctional Center with a request that copies of any and all records of treatment, and in particular psychiatric treatment, for the Veteran be provided to the AOJ. The Veteran should be requested to sign the necessary authorization for release of such private medical records to VA.
All attempts to procure those records should be documented in the file. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. In addition, the Veteran should be informed of any such problem. He should be given opportunity to provided the records.
3. After completion of the development ordered in paragraphs 1 and 2 above, the AOJ should schedule the Veteran for an examination by a psychiatrist. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2011).)
The examiner should review the record, take a detailed history, examine the Veteran, and provide an opinion as to the medical probabilities that any diagnosed psychiatric disorder is traceable to the Veteran's period of military service. Detailed reasons for the examiner's conclusions should be set forth. Specific consideration should be given to the problems noted in the Veteran's service treatment records.
If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definite opinion can be obtained.)
4. The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate.
5. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review.
Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).